Monday, May 23, 2016

New Paper in Federalist Society Review Calls for FCC Process Reform

Today, Free State Foundation President Randolph May and Senior Fellow Seth Cooper published a paper in the Federalist Society Review entitled “The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses.” Mr. May and Mr. Cooper discuss the FCC’s general conduct standard, established in the February 2015 Open Internet Order, and its inconsistency with due process and rule of law principles. They also question a few recent enforcement actions by the FCC and discuss why the regulated companies often are better off settling than going to court, even when it is not clear that the company violated FCC regulations.
The paper also criticizes the FCC’s merger review process and the Commission’s actions to “regulate by condition” in a way that imposes different regulatory mandates on similarly situated market participants. If the FCC does not reform its merger review process soon, Mr. May and Mr. Cooper suggest that Congress pass FCC reform legislation that includes merger review provisions.

“The FCC and the Rule of Law” was the theme of FSF’s Eighth Annual Telecom Policy Conference. 
The Rule of Law panel and transcript provide more insight into the need for process reform at the FCC.

Friday, May 20, 2016

Two New Perspectives from FSF Scholars!

This week, the Free State Foundation published two Perspectives from FSF Scholars. President Randolph May and Visiting Fellow Gregory Vogt coauthored a paper entitled "It’s Time for U.S. Leadership Regarding Zero-Rating and Similar Programs." This Perspectives discusses how zero-rated services can expand broadband access around the world and why a hands off approach from the FCC regarding zero-rated services could influence foreign governments to do the same.
In a different Perspectives from FSF Scholars entitled "Video Report Data Undermine the FCC’s Rationale for New Device Regulation," Senior Fellow Seth Cooper points out the inconsistencies between the FCC's Seventeenth Video Competition Report and its February 2016 proposed set-top box rulemaking

Monday, May 16, 2016

MPAA and Radix Agree to Combat Piracy

On May 13, 2016, the Motion Picture Association of America (MPAA) and domain name registry operator Radix announced an agreement to help ensure that websites using domains operated by Radix are not engaging in large-scale commercial piracy. Similar to MPAA’s recent agreement with Donuts, MPAA will act as a “Trusted Notifier” to inform Radix when a websites with domain extensions operated by Radix are engaging in large-scale piracy.
It is necessary to address and hopefully diminish piracy and content theft with voluntary initiatives to help ensure that content providers, artists, innovators, and marketers can earn a return on their creative works – thereby incentivizing more innovation, investment, and economic growth.

Friday, May 13, 2016

Zero-Rating Promotes Upward Mobility for Minority and Low-Income Consumers

The Multicultural Media, Telecom and Internet Council (MMTC) published a May 2016 white paper entitled “Understanding and Appreciating Zero-Rating: The Use and Impact of Free Data in the Mobile Broadband Sector.” The paper discusses how zero-rated services positively impact consumers, particularly minority and low-income individuals. The consumer benefits of zero-rated services deserve close attention. Regrettably for consumers, the FCC’s reclassification of broadband as a Title II service in its February 2015 Open Internet Order has created concerns that zero-rated services could be regulated out of existence.
Zero-rated services are also known as “free data” services. These pro-consumer services are mobile broadband offerings which allow consumers to access curated online content with an exemption from monthly data caps. Typically, that means consumers can access unlimited curated online content at no additional cost. MMTC’s paper explores five positive impacts of zero-rated services on the Internet ecosystem: lessening the digital divide, increasing the ability of smartphone-only consumers, driving innovative mobile broadband business models, spurring innovation within the entire mobile ecosystem, and empowering consumers.
The digital divide is characterized as the gap between individuals who are online and those who are not. For non-adopters who have little interest in a broadband connection, zero-rated programs can help bridge the gap by offering unlimited video or music content, for example. For non-adopters who believe mobile broadband is too expensive, free data services allow for more Internet usage at a lower cost than a traditional mobile broadband subscription.
As the white paper states:
Free data helps to address these barriers by enhancing the value proposition for non-adopters. The ability to stream as much video and music content as possible – activities that are among the most popular wireless uses across every user group – could become an enticing on-ramp for non-users: if they come to wireless broadband for unlimited Netflix streaming, they may very well stay online and use their connections for additional, more meaningful uses. For those who perceive broadband of any kind – wired or wireless – to be too expensive, the promise of free data could allow them to purchase more basic plans with lower data caps, which would deliver significant monthly cost-savings.
There is a national trend among consumers of all income levels of substituting mobile broadband for fixed broadband. This trend is especially pronounced among minority and low-income consumers. Free data services allow smartphone-only consumers to accomplish more on the Internet without exceeding their monthly data caps. Because streaming video does not count towards data caps under zero-rated services like T-Mobile’s “Binge On,” smartphone-only consumers can allocate data for other uses, such as finding directions, reading a news article, or taking a political survey.
Zero-rated programs are innovative business models designed to benefit the individual consumer. A recent CTIA survey says that 65 percent of American adults are likely to sign-up with a new wireless provider offering free data, so providers are using these services to compete with each other. The MMTC white paper says that consumers find the personalization of zero-rated programs attractive:
These programs have been voluntary from the start – depending on the service provider, subscribers are free to either opt in or opt out at any time. This builds on the modularity inherent in the modern wireless sector, where users have significant freedom to customize their user experience by, for example, picking and choosing which apps to install, which handset to purchase, which network to use, and which service option best matches their data needs.
As the number of mobile devices and connections increases and as mobile networks upgrade to 5G over the next several years, innovation in zero-rated services could lay the groundwork for other personal data consumption. Although zero-rated services are used primarily for entertainment purposes, these offerings likely will expand into new (and arguably more important) spaces within the mobile ecosystem. Health, energy, and dietary monitoring are becoming popular tools among mobile broadband consumers. MMTC says that zero-rated programs could offer critical, time-sensitive, and life-enhancing services:
For example, zero-rating certain health-related mobile tools could prove enormously beneficial for African Americans, who, as a group, are more likely to develop chronic diseases such as diabetes and heart disease. Left unaddressed, these kinds of ailments incur significant healthcare costs. But when treated in a preventative and real-time manner, there is evidence to suggest that health outcomes in these communities improve while also helping to realize cost-savings for patients and healthcare providers alike. These benefits inure not just to communities of color but to everyone.
Zero-rated services provide enhanced value and choice, especially to low-income consumers. Because providers are offering free data services in competition with each other and because those services allow consumers to opt in/opt out at any time, consumers have the freedom to choose which offerings benefit them the most. MMTC states that “this overall trend toward greater consumer empowerment, of which free data is the most recent example, benefits all consumers in many ways – but for communities of color and low-income households, these benefits are especially impactful given their above-average use of mobile broadband.”
The FCC has scrutinized zero-rated services because many critics say they violate network neutrality principles. However, in the Open Internet Order, zero-rated services do not expressly fall under the definition of a “broadband Internet access service,” and therefore are not subject to Title II regulations. (At least that is the way it was presented during the D.C. Circuit Oral Argument in December 2015, but we are still waiting on a decision.)
During a “Fireside Chat at Free State Foundation’s Eighth Annual Telecom Policy Conference, Commissioner Mignon Clyburn called it a “good thing” that zero-rated services were not discussed in the Open Internet Order. Commissioner Clyburn also acknowledged the pro-consumer aspects of zero-rated services. Commissioner Clyburn explained:
One of the reasons I was honestly very vocal inside of our house about not abandoning or not eliminating outright the other possibility for sponsored data or zero-rated plans was because when it comes to product differentiation and the like, it could be a good thing. It could be a worrisome thing too when it’s used in a way which we did not envision. And that's why we said we will look at these things on a case-by-case basis.
Commissioner Clyburn’s observations surely cut against simplistic claims of critics that zero-rated services categorically violate principles set out in the Open Internet Order. Even so, agency scrutiny of zero-rated services – whether based on a vague “general conduct” standard or some other unknown standard – results in a state of regulatory uncertainty. Innovative and pro-consumer service offerings are stymied when market providers cannot discern or predict what the agency's rules are and whether their new offering will be permitted.
MMTC Vice President and Chief Research and Policy Officer Nicol Turner-Lee stated during the Hot-Topic Communications Issues Panel at FSF’s conference that the FCC consistently fails to take into account minority groups and diversity within the communications industry. As this white paper clearly outlines, free data services are innovative business models that benefit diverse groups across the United States, particularly minority and low-income consumers. Any intervention from the FCC to regulate or prohibit such offerings would show little consideration for diversity within the communications space and would hinder upward mobility for low-income consumers.
FSF scholars have written frequently about the positive economic impacts of zero-rated services and the scrutiny they have received from the FCC and foreign government agencies. See the following selection below:    

Friday, May 06, 2016

New Study: Light-Touch Regulatory Environment Encourages Investment

On May 5, 2016, the Internet Innovation Alliance released a study entitled “The Impact of Broadband and Related Information and Communications Technologies On the American Economy.” The study’s authors, Kevin Hassett and Robert Shapiro, argue that the broadband and information and communications technologies (ICT) sector has grown tremendously over the past decade under light-touch regulation. However, the authors note that unnecessary and costly regulations, such as those imposed by the FCC’s Title II reclassification of broadband in the Open Internet Order, could harm broadband and ICT sector investment.
Here are some of the study’s key findings:
  • In 2014, the U.S. broadband/ICT sector produced $1.02 trillion in value added for the U.S. economy, which is about 2.9 percent of GDP.
  • In 2014, companies within the broadband/ICT sector employed 4.9 million full-time equivalent (FTE) jobs or 4.2 percent of all U.S. private employment.
  • Including the 2.8 million FTE jobs created by demands in goods and services by the broadband/ICT industry, the sector was responsible for 7.7 million FTE jobs or 6.4 percent of all U.S. private employment.
  • In 2014, the average compensation for an FTE broadband/ICT employee was $104,390, which is 59.3 percent greater than the average compensation earned by other U.S. workers.
Mr. Hassatt and Mr. Shapiro state that “the large economic effects associated with the broadband/ICT sector have developed and grown in an environment of light federal regulation.”  Although this study does not estimate the direct impact of the Open Internet Order, the authors say that “rising regulatory costs in this sector will adversely affect its investments,” and “such adverse effects on investment would be felt not only by broadband/ICT companies, but also by companies in other industries that invest substantially in broadband/ICT goods and services.” Therefore, Mr. Hassatt and Mr. Shapiro “would expect that the negative effects of such regulation on investment, output and employment could all be substantial.”

For more on the adverse impact of Internet regulation on broadband investment, see my October 2015 blog.

Tuesday, May 03, 2016

Hulu Hopes To Grab Pay-TV Cord-Cutters

On May 1, 2016, Hulu announced a new service aimed at cord-cutters. The unnamed subscription service would stream feeds of popular broadcasts and pay-TV channels, making the company a competitor to traditional pay-TV providers. Walt Disney Co. and 21st Century Fox, co-owners of Hulu, are working on agreements to license many of their channels for the platform. Comcast Corporation, another co-owner of Hulu, has yet to announce if it will participate in the service with its NBC programming.
Pay-TV providers are developing streaming services to increase their number of consumers. Dish Networks, Comcast, and AT&T-DIRECTV all offer curated streaming programs. Because one-in-seven Americans are “cord-cutters,” meaning they no longer have a traditional pay-TV subscription, online offerings allow pay-TV providers to gain back some of their former subscribers.
Hulu’s new service is not an attempt to regain former subscribers. Instead, it hopes to grab cord-cutters from the entire video marketplace. Hulu’s service could become the standard for streaming live television because it would not require a specific Internet service provider, and because it could pull programming from three of the biggest content companies - Disney, Fox, and NBC.
This transition from pay-TV to streaming services within the video marketplace is a response to the increasing number of cord-cutters. There is no doubt that the video market is moving online, but the FCC recently proposed to lock in old technology and add unnecessary regulations to set-top boxes. These regulations would not only create costs that could stifle this innovative transition, but they would allow 3rd parties to reap the benefits of content creators’ intellectual property rights.
See our infographic on the FCC’s proposal and our comments submitted to the FCC regarding expanding consumers’ video navigation choices and commercial availability of navigation devices.

Tuesday, April 26, 2016

World IP Day

Today is World IP Day!
World IP Day is an opportunity for ordinary people to take a step back and consider all the economic benefits that have resulted from strong protections of intellectual property rights. It’s an opportunity to promote greater public understanding about the importance of IP rights.
Strong protections of IP rights are important for ensuring that creators, content providers, artists, innovators, and marketers can earn a return on their creative works and the labor that makes them possible. Protection of IP rights incentivizes more innovation, investment, and economic growth. 
FSF President Randolph May and Senior Fellow Seth Cooper coauthored two recent Perspectives from FSF Scholars regarding intellectual property rights.
Randolph J. May, Seth L. Cooper, “George Washington: Indispensable to Intellectual Property Rights in America,” Perspectives from FSF Scholars, Vol. 11, No. 9, (February 26, 2016).
Randolph J. May, Seth L. Cooper, “The Public Contract Basis for Intellectual Property Rights,” Perspectives from FSF Scholars, Vol. 11, No. 13, (April 19, 2016).
Also, remember to check out their book on Amazon entitled “The Constitutional Foundations of Intellectual Property: A Nature Rights Perspective.”